Case Note & Summary
The case involves a second appeal filed by the appellants (defendants in the original suit) against a decree for possession passed by the trial court and confirmed by the first appellate court. The original plaintiff, Mohanlal s/o Bhika Badode (since deceased and represented by his legal representatives), had filed a suit for possession of the suit property. The appellants claimed to be in possession of the property since 1961 and argued that the suit was barred by limitation under Article 64 of the Limitation Act, 1963, which requires a suit for possession to be filed within 12 years from the date when possession becomes adverse. However, the appellants did not raise the issue of limitation or adverse possession in the trial court or the first appellate court. They also sought to produce additional documents, including a Sanad issued by the State Government and tax receipts, to prove their ownership and possession, but these documents were not produced earlier due to alleged negligence of their previous counsel. The High Court, in its judgment, held that no substantial question of law arose in the second appeal. The court noted that the plea of limitation and adverse possession was not raised in the lower courts and could not be raised for the first time in second appeal. Regarding the application for additional evidence, the court found that the appellants failed to demonstrate that they could not have produced the documents with due diligence at the earlier stages. Consequently, the second appeal was dismissed, and the concurrent findings of the lower courts were upheld. The court also disposed of the accompanying civil applications.
Headnote
A) Limitation Act - Adverse Possession - Article 64 - Suit for possession must be filed within 12 years from when possession becomes adverse - Appellants claimed possession from 1961 but did not raise the issue of limitation or adverse possession in the courts below - Held that such a plea cannot be raised for the first time in second appeal (Paras 5-6).
B) Civil Procedure Code - Second Appeal - Section 100 - Substantial question of law - The court found no substantial question of law arising from the concurrent findings of the lower courts - Held that second appeal must be dismissed (Para 7).
C) Evidence Act - Additional Evidence - Section 107 - Appellants sought to produce documents to prove ownership and possession, but failed to show that they could not have produced them earlier with due diligence - Held that additional evidence cannot be allowed at the second appellate stage (Paras 3-4).
Issue of Consideration
Whether the second appeal raises any substantial question of law, particularly regarding limitation and adverse possession, and whether the appellants can be permitted to produce additional evidence at this stage.
Final Decision
The second appeal is dismissed. The concurrent findings of the lower courts are upheld. Civil applications are disposed of accordingly.
Law Points
- Limitation Act
- 1963
- Article 64
- Adverse possession
- Second appeal
- Substantial question of law
- New evidence
Case Details
2012 LawText (BOM) (02) 1
Second Appeal No. 122 of 2010 with Civil Application No. 1888 of 2010, Civil Application No. 4840 of 2010, and Civil Application No. 15333 of 2011
Mr. R.K. Bhakade for Appellants, Mr. Hemant Surve for Respondents
Ashabai w/o Ramchandra Kotecha, Premabai w/o Ramchandra Kotecha (died), Narsing s/o Ramchandra Kotecha
Mohanlal s/o Bhika Badode (died) through his LRs: Smt. Munnabai w/o Mohanlal, Pushpabai d/o Mohanlal Badoda, Chandrakant s/o Mohanlal Badoda, Kishor s/o Mohanlal Badoda, Savita Mohanlal Badoda
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Nature of Litigation
Second appeal against concurrent decrees for possession in a civil suit.
Remedy Sought
Appellants sought to set aside the decree for possession and remand the matter for fresh trial, or to allow the appeal and dismiss the suit.
Filing Reason
Appellants claimed they were in possession of the suit property since 1961 and that the suit was barred by limitation, and they could not produce evidence earlier due to counsel's negligence.
Previous Decisions
Trial court decreed the suit for possession; first appellate court confirmed the decree.
Issues
Whether the second appeal raises any substantial question of law?
Whether the appellants can be permitted to raise the plea of limitation and adverse possession for the first time in second appeal?
Whether the appellants can be allowed to produce additional evidence at this stage?
Submissions/Arguments
Appellants argued that suit for possession should have been filed within 12 years from 1961 as per Article 64 of Limitation Act, and they are in continuous possession since then.
Appellants submitted that they could not produce documents (Sanad, tax receipts) earlier due to their counsel's absence and husband's death, but now have the documents.
Appellants sought remand for fresh trial to allow them to lead evidence.
Ratio Decidendi
A plea of limitation or adverse possession cannot be raised for the first time in second appeal if not taken in the courts below. Additional evidence cannot be permitted at the second appellate stage unless the party shows that despite due diligence, it could not be produced earlier.
Judgment Excerpts
Heard learned counsel for the Appellants.
Learned counsel the Appellants invited my attention to the grounds taken in the appeal memo, annexures thereto and other documents placed on record and submitted that, as per the provisions of Article 64 of the Limitation Act, suit for possession ought to have been filed within a period of 12 years.
The Appellants are in possession of the suit property from the year 1961.
It is submitted that the Appellants are continuously paying the Gram Panchayat Tax and other taxes.
Therefore, the Appellants were not able to lead either oral or documentary evidence and therefore, this Court may allow the second appeal and remand the matter back to the trial Court for fresh trial.
However, now the original documents are placed on record alongwith the application.
Therefore, those documents may be taken on record and the matter may be remanded back.
Procedural History
The original plaintiff filed a suit for possession. The trial court decreed the suit. The first appellate court confirmed the decree. The defendants (appellants) filed a second appeal before the High Court. During the pendency of the appeal, the original plaintiff died and his legal representatives were brought on record. The appellants also filed civil applications for additional evidence. The High Court heard the appeal and dismissed it on 24th February 2012.
Acts & Sections
- Limitation Act, 1963: Article 64
- Code of Civil Procedure, 1908: Section 100
- Indian Evidence Act, 1872: Section 107
